sc13da808037002_09202010.htm

0000921895-10-001401.txt : 20100924 0000921895-10-001401.hdr.sgml : 20100924 20100924170454 ACCESSION NUMBER: 0000921895-10-001401 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20100924 DATE AS OF CHANGE: 20100924 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BENIHANA INC CENTRAL INDEX KEY: 0000935226 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING PLACES [5812] IRS NUMBER: 650538630 STATE OF INCORPORATION: DE FISCAL YEAR END: 0330 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-48717 FILM NUMBER: 101089360 BUSINESS ADDRESS: STREET 1: 8685 NW 53RD TERRACE CITY: MIAMI STATE: FL ZIP: 33166 BUSINESS PHONE: 3055930770 MAIL ADDRESS: STREET 1: 8685 NW 53RD TERRACE CITY: MIAMI STATE: FL ZIP: 33166 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BENIHANA OF TOKYO INC CENTRAL INDEX KEY: 0001265915 IRS NUMBER: 131998703 STATE OF INCORPORATION: NY FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 2005 KALIA ROAD CITY: HONOLULU STATE: HI ZIP: 96815 BUSINESS PHONE: 808-955-5955 MAIL ADDRESS: STREET 1: 2005 KALIA ROAD CITY: HONOLULU STATE: HI ZIP: 96815 SC 13D/A 1 sc13da808037002_09202010.htm AMENDMENT NO. 8 TO THE SCHEDULE 13D sc13da808037002_09202010.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

(Rule 13d-101)

INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT

TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO

§ 240.13d-2(a)

(Amendment No. 8)1

Benihana, Inc.

(Name of Issuer)

Common Stock, par value $0.10 per share

(Title of Class of Securities)

082047101

(CUSIP Number)

STEVEN WOLOSKY, ESQ.

OLSHAN GRUNDMAN FROME ROSENZWEIG & WOLOSKY LLP

Park Avenue Tower

65 East 55th Street

New York, New York 10022

(212) 451-2300

(Name, Address and Telephone Number of Person

Authorized to Receive Notices and Communications)

September 20, 2010

(Date of Event Which Requires Filing of This Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7 for other parties to whom copies are to be sent.

_______________

1 The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

CUSIP NO. 082047101

1	NAME OF REPORTING PERSON RHA TESTAMENTARY TRUST
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS AF
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION NEW YORK
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 2,153,744
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 2,153,744
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,153,744
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.1%
14	TYPE OF REPORTING PERSON OO

CUSIP NO. 082047101

1	NAME OF REPORTING PERSON BENIHANA OF TOKYO, INC.
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION NEW YORK
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 2,153,744
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 2,153,744
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,153,744
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.1%
14	TYPE OF REPORTING PERSON CO

CUSIP NO. 082047101

1	NAME OF REPORTING PERSON KEIKO ONO AOKI
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS OO
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER 2,153,744
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER 2,153,744
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,153,744
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 38.1%
14	TYPE OF REPORTING PERSON IN

CUSIP NO. 082047101

1	NAME OF REPORTING PERSON MICHAEL W. KATA
2	CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP		(a) x (b) o
3	SEC USE ONLY
4	SOURCE OF FUNDS
5	CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e)		¨
6	CITIZENSHIP OR PLACE OF ORGANIZATION USA
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH	7	SOLE VOTING POWER - 0 -
	8	SHARED VOTING POWER - 0 -1
	9	SOLE DISPOSITIVE POWER - 0 -
	10	SHARED DISPOSITIVE POWER - 0 -1
11	AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON - 0 -1
12	CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES		o
13	PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0%
14	TYPE OF REPORTING PERSON IN

1 See Item 5.

CUSIP NO. 082047101

The following constitutes Amendment No. 8 to the Schedule 13D filed by the undersigned (“Amendment No. 8”). This Amendment No. 8 amends the Schedule 13D as specifically set forth.

Item 2.

Identity and Background.

Item 2 is hereby amended to add the following:

In connection with the Settlement Agreement described and defined in Item 4, BOT has withdrawn its nomination of Mr. Kata for election at the Annual Meeting. Accordingly, Mr. Kata is no longer a member of the Section 13(d) group and shall cease to be a Reporting Person immediately after the filing of this Amendment No. 8. The remaining Reporting Persons will continue filing as a group statements on Schedule 13D with respect to their beneficial ownership of securities of the Issuer to the extent required by applicable law. Each of the remaining Reporting Persons is party to the Joint Filing Agreement, as further described in Item 6.

Item 4.

Purpose of Transaction.

Item 4 is hereby amended to add the following:

On September 20, 2010, the Reporting Persons and the Issuer entered into a settlement agreement (the “Settlement Agreement”). Pursuant to the terms of the Settlement Agreement, the Issuer agreed among other things, (i) to nominate Mr. Kata for election to the Board at the Annual Meeting as a Class III, Common Stock director, (ii) the Board shall recommend that the Issuer’s stockholders vote in favor of the election of Mr. Kata at the Annual Meeting, (iii) to amend its preliminary proxy statement or file a supplement to such proxy statement in connection with the Annual Meeting to reflect such nomination and recommendation, (iv) to use its reasonable best efforts to solicit proxies in favor of the election of Mr. Kata at the Annual Meeting, and (v) if Mr. Kata is elected as a director and can no longer serv e on the Board because of death or disability before the expiration of his term, the Reporting Persons shall be entitled to recommend a substitute “independent” nominee to replace Mr. Kata, subject to the approval of the Issuer’s Nominating and Corporate Governance Committee (the “Nominating Committee”), which approval will not be unreasonably withheld. In the event the Nominating Committee does not accept such replacement director recommended by the Reporting Persons, the Reporting Persons will have the right to recommend additional replacement director(s) for consideration by the Nominating Committee. Any replacement director approved by the Nominating Committee will be appointed to the Board no later than five (5) business days after such approval.

Pursuant to the Settlement Agreement, the Reporting Persons agreed among other things, (i) to withdraw BOT’s nomination letter dated July 16, 2010, (ii) to irrevocably and immediately cease their proxy solicitation activities in connection with the Annual Meeting, (iii) to withdraw BOT’s demand, pursuant to Section 220 of the Delaware General Corporation Law, to review certain of the Issuer’s books and records, (iv) to vote all of the Shares beneficially owned by the Reporting Persons in favor of the Issuer’s nominees for election as directors at the Annual Meeting and in accordance with recommendations from the Board on all other matters presented to the Issuer’s stockholders at the Annual Meeting, and (v) not to make any additional proposals for consideration by the Issuer’s stockholders at the An nual Meeting.

The foregoing description of the Settlement Agreement is qualified in its entirety by reference to the full text of the Settlement Agreement, which is attached as Exhibit 99.1 hereto and is incorporated herein by reference.

CUSIP NO. 082047101

Item 6.

Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 is hereby amended to add the following:

On September 20, 2010, the Reporting Persons and the Issuer entered into a Settlement Agreement defined and described in Item 4 above and attached as Exhibit 99.1 hereto.

On September 24, 2010, BOT, the Trust and Keiko Ono Aoki entered into a Joint Filing Agreement in which the Reporting Persons who will remain Reporting Persons subsequent to this Amendment No. 8 agreed to the joint filing on behalf of each of them of statements on Schedule 13D with respect to the securities of the Issuer to the extent required by applicable law. A copy of this agreement is attached hereto as Exhibit 99.2 and is incorporated herein by reference

Item 7.

Material to be Filed as Exhibits.

Item 7 is hereby amended to include the following exhibits:

Exhibit 99.1

Settlement Agreement by and among Benihana of Tokyo, Inc., RHA Testamentary Trust, Keiko Ono Aoki, Michael W. Kata and Benihana Inc., dated September 20, 2010.

Exhibit 99.2

Joint Filing Agreement by and among Benihana of Tokyo, Inc., RHA Testamentary Trust and Keiko Ono Aoki, dated September 24, 2010.

CUSIP NO. 082047101

SIGNATURES

After reasonable inquiry and to the best of his knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

Dated: September 24, 2010

RHA TESTAMENTARY TRUST

By:	/s/ Keiko Ono Aoki
	Name:	Keiko Ono Aoki
	Title:	Sole Trustee

BENIHANA OF TOKYO, INC.

By:	/s/ Keiko Ono Aoki
	Name:	Keiko Ono Aoki
	Title:	President and Chief Executive Officer

	/s/ Keiko Ono Aoki
	KEIKO ONO AOKI

	/s/ Michael W. Kata
	MICHAEL W. KATA

EX-99.1 2 ex991to13da808037002_092010.htm SETTLEMENT AGREEMENT ex991to13da808037002_092010.htm

Exhibit 99.1

Agreement

This Agreement, dated as of September 20, 2010 (this “Agreement”), is by and among Benihana of Tokyo, Inc., a New York corporation (“BOT”), the RHA Testamentary Trust, a trust established under the laws of New York with Keiko Ono Aoki as sole trustee (the “Trust”), Keiko Ono Aoki and Michael W. Kata (collectively, the “BOT Group”, and each, individually, a “member” of the BOT Group) and Benihana Inc., a Delaware corporation (the “Company”).

RECITALS

WHEREAS, the BOT Group beneficially owns (as defined below) shares of the Company’s Common Stock, par value $0.10 per share (the “Common Stock”) as specified in Amendment No. 7 to the Schedule 13D filed by the BOT Group with the Securities and Exchange Commission (the “SEC”) on September 1, 2010;

WHEREAS, BOT delivered (i) a letter to the Company nominating Kenneth J. Podziba and Michael W. Kata (the “Nomination Letter”) for election to the Company’s Board of Directors (the “Board”) as Common Stock directors at the 2010 annual meeting of stockholders of the Company (the “2010 Annual Meeting”) and (ii) a demand, pursuant to Section 220 of the Delaware General Corporation Law, to review certain of the Company’s books and records in connection with the 2010 Annual Meeting;

WHEREAS, on August 6, 2010, the BOT Group filed a preliminary proxy statement on Schedule 14A with the SEC, as subsequently amended on August 18, 2010, related to the matters set forth in the Nomination Letter;

WHEREAS, on September 10, 2010, the BOT Group filed a definitive proxy statement on Schedule 14A with the SEC, nominating Michael W. Kata for election to the Board as a Common Stock director at the 2010 Annual Meeting; and

WHEREAS, the Company and the members of the BOT Group have come to an agreement with respect to certain matters related to the 2010 Annual Meeting and certain other matters, as provided in this Agreement;

NOW, THEREFORE, in consideration of the promises, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Party, intending to be legally bound, hereby agrees as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Defined Terms. For purposes of this Agreement:

(a) “Affiliate” has the meaning set forth in Rule 12b-2 promulgated by the SEC under the Exchange Act.

(b) The terms “beneficial owner” and “beneficially owns” have the meanings set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act.

(d) “Person” means any individual, partnership, corporation, group, syndicate, trust, government or agency, or any other organization, entity or enterprise.

Section 1.2 Interpretation. When reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein,” “hereby” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any partic ular provision of this Agreement. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing an instrument to be drafted.

ARTICLE II

BOARD NOMINATION

Section 2.1 2010 Annual Meeting. As promptly as practicable after the date hereof, (a) the Company shall nominate Michael W. Kata for election at the 2010 Annual Meeting as a Class III, Common Stock director, (b) the Board shall recommend that the Company’s stockholders vote in favor of the election at the 2010 Annual Meeting of Mr. Kata as a Class III, Common Stock director, (c) the Company shall amend its pr eliminary proxy statement or shall file a supplement to such proxy statement in connection with the 2010 Annual Meeting to reflect such nomination and recommendation, as well as the other matters set forth herein, and (d) the Company shall use its reasonable best efforts to solicit proxies in favor of the election at the 2010 Annual Meeting of Mr. Kata as a Class III, Common Stock director.

Section 2.2 Additional Company Obligation. The Company shall reimburse the BOT Group immediately following the 2010 Annual Meeting for all of the BOT Group’s reasonable, documented, out-of-pocket expenses (including legal fees and expenses) incurred in connection with its recent Section 13D filings, the Nomination Letter, its solicitation, the Section 220 Demand and the other matters governed by this Agreement (including the negotiation and execution hereof) but in no event in excess of $100,000.

Section 2.3 Death or Disability. If Mr. Kata is elected as a director and can no longer serve on the Board because of death or disability before the expiration of his term, the BOT Group shall be entitled to recommend to the Nominating and Corporate Governance Committee a replacement director who will qualify as “independent” pursuant to Nasdaq listing standards. The Nominating and Corporate Governance Committee shall not unreasonably withhold acceptance of any such replacement director. If the Nominating and Corporate Governance Committee does not accept a replacement director recommended by the BOT Group, the BOT Group shall have the rig ht to recommend one or more additional replacement directors for consideration by the Nominating and Corporate Governance Committee. Upon the acceptance of a replacement director nominee by the Nominating and Corporate Governance Committee, the Board will appoint such replacement director to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee’s recommendation of such replacement director.

ARTICLE III

PROXY CONTEST AND OTHER MATTERS

Section 3.1 Undertakings by the BOT Group. The BOT Group hereby (a) withdraws the Nomination Letter and any nominations made to the Board prior to the date hereof, (b) irrevocably and immediately ceases its proxy solicitation activities with respect to the Company in connection with the 2010 Annual Meeting and agrees to immediately make all required or appropriate filings with the SEC with respect to such termination of its proxy solicitation, (c) withdraws the Section 220 Demand, (d) agrees to vote all shares of Common Stock beneficially owned by it (i) in favor of the Company’s nominees for election as directors at the 2010 Annual Meeting and (ii) in accordance with recommendations from the Board on all other matters presented to the Company’s stockholders at the 2010 Annual Meeting and (e) agrees it will not make any additional proposals for consideration by the Company’s stockholders at the 2010 Annual Meeting. No later than the second business day after the date hereof, the BOT Group shall file with the SEC an amendment to its Schedule 13D with respect to the Company disclosing the material contents of this Agreement.

Section 3.2 Consents. Michael W. Kata hereby consents to (a) being named as a nominee in any proxy statement filed by the Company in connection with the solicitation of proxies or written consents for election as a Class III, Common Stock director at the 2010 Annual Meeting and (b) serving as a Class III, Common Stock director of the Company if elected at the 2010 Annual Meeting.

Section 3.4 Press Release. In the event that the Company elects to make a press release pertaining to this Agreement, such press release will be mutually acceptable to both the BOT Group and the Company.

ARTICLE IV

REPRESENTATIONS, WARRANTIES AND COVENANTS

Section 4.1 Representations and Warranties of Each Party. Each Party represents and warrants to the other Parties that:

(a) such Party, if not a natural Person, has all requisite limited partnership, limited liability company or corporate authority and power to execute and deliver this Agreement and to perform such Party’s obligations hereunder;

(b) the execution and delivery of this Agreement by such Party and the performance of such Party’s obligations hereunder have been duly and validly authorized by all required limited partnership, limited liability company, corporate or other action on the part of such Party and no other proceedings on the part of such Party are necessary to authorize the execution and delivery of this Agreement by such Party or the performance of such Party’s obligations hereunder;

(c) this Agreement has been duly and validly executed and delivered by such Party and constitutes the valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; and

(d) this execution and delivery by such Party of Agreement and the performance of such Party’s obligations hereunder will not result in a violation of any terms or provisions of any (i) organizational document of such Party, (ii) agreement to which such Party is a party or by which such Party may otherwise be bound or (iii) law, rule, license, regulation, judgment, order or decree governing or affecting such Party.

Section 4.2. Additional Representations, Warranties and Covenants of the BOT Group. Each member of the BOT Group represents, warrants and covenants to the Company that each member of the BOT Group has received all requisite consents and has all requisite authority and power to execute and deliver this Agreement, to perform all of such party’s obligations hereunder, including, but not limited to, voting of the BOT Group’s shares of Common Stock as contemplated herein, and that this Agreement is enforceable in accordance with its terms.

ARTICLE V

OTHER PROVISIONS

Section 5.1 Remedies; Governing Law.

(a) In the event any member of the BOT Group is found to have breached the representations, warranties and covenants of this Agreement, Michael W. Kata shall, immediately upon receipt of the written request of the Board, submit his resignation as a director of the Company effective as of the date of the receipt of such request.

(b) The Parties further agree that any breach of this Agreement would cause irreparable harm to the other Parties, that money damages alone would not be a sufficient remedy and that the Parties shall be entitled to equitable relief, including injunction and specific performance, in the event of any breach or threatened breach of the provisions of this Agreement. The Parties shall not oppose the granting of such relief, and shall waive any requirement for the securing or posting of any bond in connection with such remedy. Equitable relief shall not be deemed to be the exclusive remedy for breach of this agreement, but shall be in addition to all other remedies available at law or in equity.

(c) The Parties agree that the Court of Chancery or federal court of the State of Delaware shall have exclusive jurisdiction with respect to all actions and proceedings arising out of or relating to this Agreement. Each Party hereby (i) consents to submit itself to the personal jurisdiction of the Court of Chancery or federal court of the State of Delaware in the event any dispute between the Parties arises out or relates of this Agreement, (ii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from an y such court, (iii) agrees that it shall not bring any action relating to this Agreement in any other court and irrevocably waives the right to trial by jury in the event of any such dispute and (iv) irrevocably consents to service of process by delivery of notice complying with Section 5.3.

(d) THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING WITHOUT LIMITATION VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW RULES OR PRINCIPLES OF SUCH STATE THAT WOULD PERMIT OR COMPEL THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.

Section 5.2 Entire Agreement. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and may be amended only by an agreement in writing executed by the Parties.

Section 5.3 Notices. All notices, consents, requests, instructions, approvals and other communications provided for herein and all legal process in regard hereto shall be in writing and shall be deemed validly given, made or served, if when actually received during normal business hours at the address specified in this subsection:

if to the Company, to:

Benihana Inc.

8685 Northwest 53rd Terrace

Miami, Florida 33166

Attention: General Counsel

if to any member of the BOT Group, to:

Benihana of Tokyo, Inc.

232 East 63rd Street

New York, New York 10021

Attention: Keiko Ono Aoki

with a copy to:

Olshan Grundman Frome Rosenzweig & Wolosky LLP

Park Avenue Tower

65 East 55th Street

New York, New York 10022

Attention: Steve Wolosky, Esq.

or to such other address as any party hereto may, from time to time, designate in writing delivered pursuant to the terms of this Section 5.3.

Section 5.4 Severability. If any provision of this Agreement shall be held by any court of competent jurisdiction to be illegal, void or unenforceable, such provision shall be of no force and effect, but the illegality or unenforceability of such provision shall have no effect upon the legality or enforceability of any other provision of this Agreement.

Section 5.5 Counterparts. This Agreement may be executed in two or more counterparts (including by facsimile or PDF) which together shall constitute a single agreement.

Section 5.6 Successors and Assigns. This Agreement shall not be assignable by any Party but shall be binding on successors of the Parties.

Section 5.7 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties hereto and is not enforceable by any other Person.

Remainder of page intentionally blank

Signatures appear on next page

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written.

BENIHANA INC.


By:	/s/ Allan B. Levan
	Name:	Allan B. Levan
	Title:	Director

BENIHANA OF TOKYO, INC.


By:	/s/ Keiko Ono Aoki
	Name:	Keiko Ono Aoki
	Title:	Trustee

RHA TESTAMENTARY TRUST


By:	/s/ Keiko Ono Aoki
	Name:	Keiko Ono Aoki
	Title:	Trustee

	KEIKO ONO AOKI


	By:	/s/ Keiko Ono Aoki
		Keiko Ono Aoki

	MICHAEL W. KATA


	By:	/s/ Michael W. Kata
		Michael W. Kata

EX-99.2 3 ex992to13da808037002_092010.htm JOINT FILING AGREEMENT ex992to13da808037002_092010.htm

Exhibit 99.2

JOINT FILING AGREEMENT

In accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of Amendment No. 8 to the Schedule 13D (including additional amendments thereto) with respect to the Common Stock, $0.10 par value per share, of Benihana, Inc. This Joint Filing Agreement shall be filed as an Exhibit to such Statement.

Dated: September 24, 2010	RHA TESTAMENTARY TRUST

	By:	/s/ Keiko Ono Aoki
		Name:	Keiko Ono Aoki
		Title:	Sole Trustee

BENIHANA OF TOKYO, INC.

By:	/s/ Keiko Ono Aoki
	Name:	Keiko Ono Aoki
	Title:	President and Chief Executive Officer

	/s/ Keiko Ono Aoki
	KEIKO ONO AOKI